E. Incorporation by Reference. MOLINEUX v. MOLINEUX. KING'S BENCH. 1607. [Reported Cro. Jac. 144.] EJECTMENT of a lease of Bridget Molineux at Thorp, of a house and lands in Thorp, and also de libera piscaria infra riculum de Trent, habendum for three years, &c. Upon Not guilty pleaded, it was found by special verdict, that Sir Edward Molineux was seised of the said tenements and piscary in fee, and held them in socage, and made his will in writing, whereby he devised in this manner: "I, Edward Molineux, make my will as concerning the disposition and order of certain annuities or rents to be issuing out of certain of my lands and tenements, as followeth: Whereas I bave lands in Thorp, &c., in the county of Nottingham, I will that my younger children not married, viz. Edward, Thomas, Christopher, &c., shall have such several annuities or annual rents as be expressed in several writings signed with my hand, and sealed with my seal, according to the true meaning of my said writings. And whereas my said lands are of greater value than the said annuities, I will, that if my heir after my decease truly pay the said annuities, that then my said heir shall have the order and disposition of my lands as long as he shall perform my will. And if my heir do not perform my will therein, then I will that my executors, and the survivors of them, shall have the order and disposition of my said lands to perform my will; and my son and heir to have no meddling therewith, because he hath not performed my will. And if there be default in my said heir that my will is not performed, and also in my executors, or the survivors of them, that my will is not performed, then I will that all my said lands shall be to my younger children during their lives." And he constituted John his eldest son, and the said Edward and Thomas, and two others, his executors, and died. — The jury find, that he made a writing of the grant of the rent of £6 13s. 4d. by the year issuing out of all his lands to Christopher Molineux for his life, with clause of distress, which was signed and sealed by him; and that afterward John the eldest son paid it during his life, and had issue Edward, and died; that Edward assured that land to Bridget the lessor for her life; and that afterwards the rent of £6 13s. 4d. mentioned to be granted to the said Christopher, was not paid at the Annunciation, anno 40 Eliz. by Edward, nor at any time after by the said Edward, nor by the executors of Sir Edward Molineux, nor by any of them; and that Edward the son of John died; and Bridget entered and let to the plaintiff; that Christopher entered for non payment of the rent, &c. The COURT, after divers arguments at the bar, resolved for the plaintiff. First, they held, that this will devising such rents, which are mentioned in such writings under his hand and seal, is a good devise in writing of the rents themselves: for it refers to the writing, whatsoever it is, as if it were specially limited in that will; and it is a good devise to them of the several rent-charges; TANFIELD therefore resembled it to the case where a man devises that his executors shall sell his lands, and the executors afterwards sell them, it is a good devise of the land itself by that will. And upon this reason, in Fairfax's Case, in the Court of Wards, it was resolved by the opinion of the chief justices and the counsel of that court, that where one makes a deed of feoffment to divers uses, and makes no livery, and after by his will devises the land to such persons and in such manner as he appointed by his deed of feoffment, it was a good devise of the land. But they all held, that a will cannot refer to words only without writing, but it ought to be a will in writing for all; and therefore there cannot be any averment to add anything thereto by words dehors, nor to abridge it by a condition added thereto by words.1 MARY MEREDITH, being entitled to a real and personal estate, duly made her will 29th January, 1727, and devised to her sisters all the rest and residue of her real and personal estate, after payment of her debts and legacies, and made them executrixes. The testator some time afterwards made a codicil, and gave plaintiff a legacy in the words following: "This I desire may be performed by my loving sisters, to give £200 to my cousin Edward Hannis." But this codicil was not executed in the presence of any witnesses. The question made was, Whether the £200 legacy, given by the codicil, was a charge upon the real estate. These cases were cited on the part of the plaintiff: Masters v. Masters, 1 Wms. 421; Brudenell v. Boughton, 6th March, 1741; Lord Inchiquin v. Obrien. LORD HARDWICKE, CHANCELLOR. When a real estate is duly devised to trustees, and is well charged, by a will duly executed, with debts and legacies, debts which are contracted after making the will, or legacies given by a codicil, though not duly executed, will be a charge upon the real estate; for the real estate was well charged by the will with the debts and legacies; and it is immaterial by what instrument they appear, provided such instrument has been proved as part of the will; and when that is done, it is sufficient to denote the trust, and that it is part of what was intended to be comprised. 1 The rest of the opinion, deciding other points, is omitted. VOL. IV. - - 13 ROBERT UDNY by his will, dated June 1, 1801, and duly executed according to the Statute of Frauds, devised to trustees all his real and personal estate in the island of Grenada upon trust by and out of the produce of said real and personal estate to pay off and discharge all debts and encumbrances, to which the said estates should be liable at his decease; and also to pay off and discharge all such annuities, legacies, or bequests, as he should give or bequeath to be paid out of and from, or charge and make chargeable upon, his real or personal estate in the said island of Grenada by his will or by any codicil or codicils thereto or by any writing or writings at any time or times hereafter, signed by him, or in his own handwriting, whether witnessed or not; and after payment and satisfaction of the said debts and other encumbrances, annuities, legacies, and bequests, as aforesaid, upon certain other trusts. By a subsequent clause the testator declared that he charged his estates in Grenada with the payment of an annuity of £200 to his wife. The testator made several codicils to his will, all of which were written by himself and signed but not attested. One of the codicils was as follows: "By this further codicil to my will and other codicils dated this 27th day of August, 1701 [sic], I leave my dear wife, that she may suffer no inconveniency from the change of her situation, an additional £100 per annum from my Grenada estate on the same terms of the former £200 to be paid to her by my executors, being in all £300.” Under the bill of the trustees a decree was made, among other things, directing an inquiry, what encumbrances affect the estate in Grenada. An exception was taken to the Master's report for not stating the annuity of £100, given to the wife by the codicil. Mr. Richards and Mr. Thomson, in support of the exception. [SIR WILLIAM GRANT.] I shall give no final opinion at present. But this case is materially dif ferent from any that have been hitherto decided; for the charge is of a very peculiar nature; not of all legacies he shall afterwards give; but of all such legacies as he shall afterwards charge upon the estate, or make payable out of it. Suppose he had given a general legacy by his will; that would not be charged upon this estate: nor a general legacy by a codicil. For that purpose the legatee must show that his legacy was made chargeable upon, or payable out of, the Grenada estate. That seems in effect a reservation by a will, duly executed, of a power to charge the Grenada estate by a will, not duly attested. When a 1 The statement of this case is abbreviated from the report. man by a will, duly executed, charges all legacies generally, expressing his resolution that whenever he gives them, they shall be a charge, it is determined, that whenever given, they shall be a charge. But according to this it is not in the duly attested will alone that you find the charge but the intention to make it a charge may be in the unattested instrument, the codicil. This is a new case; nearer to Habergham v. Vincent, 2 Ves. Jr. 204, than any other; where by a will, duly attested, the testator seemed to reserve to himself a power to dispose by a deed. August 7. I stated my impression as to this case before; and regret, that further consideration has not induced me to alter that impression; as the consequence is, that the widow is deprived of a part of that provision which was obviously intended for her. The ground upon which it is contended, that this additional annuity of £100 might be good as a charge upon the Grenada estate, is, that the estate being once charged with all legacies and annuities, the testator may afterwards give either legacies or annuities by an unattested codicil; that the rule is so settled in many cases; and, if this were that case, unquestionably it is too well established to be now disturbed; though it may be doubted whether it is perfectly consistent with the Statute of Frauds (Stat. 29 Ch. II. c. 3); for in effect the testator does dispose of his land by an unattested codicil, when he is at liberty to burden it with legacies so given. However in this case the testator does not charge the Grenada estate with legacies or annuities generally; but with such only as he shall afterwards give, and charge upon that estate: so that, as legacy or annuity, it is not at all chargeable upon the estate: but it is, as he has thought fit by an unattested codicil to declare, that it shall be a charge upon the estate. The reason, that debts and legacies may be a burden upon the estate, is, that they constitute a fluctuating charge. It is impossible previously to ascertain what debts a man may owe at the time of his death: and it is difficult to ascertain, when he is making his formal and regular will, what legacies he may think fit, or his fortune will enable him, to give. The court has therefore said, that when he has by a will, duly executed, charged debts and legacies, it is only necessary to show that there is a debt, or that there is a legacy, in order to constitute a charge; for the moment that character is shown to belong to the demand, you show that it is already charged upon the estate. Then, an unattested instrument is itself perfectly competent to give a legacy; and, when given, you predicate of it that it is a legacy; and then the charge immediately attaches by virtue of the executed will. But here the testator says, he does not now determine that all annuities and all legacies he shall hereafter give shall be charges; but only, that if at some future period he shall think proper to declare legacies and annuities to be charges upon this real estate, then the trustees shall pay them out of the real estate. Therefore, not only the legacy is to be found; but also the will of the testator to make it a charge upon this estate; without which it is not a charge. This is only an attempt to reserve by a will, duly executed, a power to charge by a will not duly executed. It is the case of Habergham v. Vincent. It might as well have been contended in that instance, that there was an adoption into the will of that future instrument: but the opinion of the Lord Chancellor and the judges was, that it was not competent to a man to give himself such a power; viz. a power to dispose of land by an unattested instrument. That is the reservation this testator attempts to make; for, unless he thinks fit, when he makes his codicil, to declare his intention that his land shall be charged with the legacy or annuity, it shall not be charged. Then it is through the medium of an unattested instrument that it is to be a charge upon land; and that cannot be within that case. The Master is therefore right in reporting, that this annuity of £100 is not a charge upon the Grenada estate; and the exception must be overruled.1 STUBBS v. SARGON. CHANCERY. 1838. [Reported 3 Myl. & C. 507.] THE LORD CHANCELLOR. [LORD COTTENHAM.] The second question is, Whether the ultimate devise of the premises in Little Queen Street be void, either under the Statute of Frauds, or for uncertainty. The earnestness with which the point was pressed at the bar by very eminent and learned counsel, has induced me to devote more consideration to the subject than I should have thought necessary from any difficulty I have felt upon the point itself. The devise is to trustees to keep in repair the premises, and, subject thereto, to pay the rents to the testatrix's sister, Mary Innell, during her life, and after her decease, in trust to dispose of and divide the same unto and amongst her partners who should be in copartnership with her at the time of her decease, or to whom she might have disposed of her business, in such shares and proportions as her trustees should think fit and deem advisable. She gave her stock in trade to her executors to sell, but with liberty for her partners, or the persons who should be entitled to her freehold premises under her will, to purchase the same at a valuation. She gave the residue of her personal estate amongst certain of her nephews and nieces; but provided that such of her nephews as should be entitled to any beneficial interest in her freehold premises under her will, should have only one half of the shares of the others. 1 See Johnson v. Ball, 5 De G. & Sm. 85 (1851); Thayer v. Wellington, 9 Allen, 283 (1864). 2 Only the opinion is given, and of that the portions relating to other points are omitted. |